Point of Law: Sec.22 deals with punishment for contravention involving “small quantity”, “intermediate quantity” & “commercial quantity.”

ORDER :

ALEXANDER THOMAS, J.

The aforecaptioned application has been instituted under Sec.439 of the Code of Criminal Procedure (Cr.P.C), seeking for regular bail, in regard to the involvement of the sole applicant herein, as accused No.2, in the instant Crime No.34/2021 of Kannur Excise Range Office, which has been registered for offences punishable under Sec.22(c) read with Sec.29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act” or as “the Act”, for short).

2. The gist of the prosecution case in the above crime is that on 15.12.2021 at about 7.25 PM, the two accused persons in this case were found in possession of 0.1586 grams of LSD, transported in a scooter, bearing registration No.KL 13 AJ 2850, at Payyambalam, near the office of the Postal Superintendent, Kannur. The specific allegation is to the effect that, on seeing the Excise party, A-1 handed over some articles to the applicant herein (A-2) and he had put it in his pocket and on suspicion, search was conducted and LSD was found in possession of A-2. The applicant was arrested on 15.12.2021 and has thereafter been remanded to judicial custody. A-1 had filed Crl. Miscellaneous Petition No.14/2022 and the applicant herein (A-2) had filed Crl. Miscellaneous Petition No.23/2022 before the Court of Sessions Judge (NDPS Act cases), Vadakara, Kozhikode District, seeking for regular bail under Sec.439 of the Cr.P.C. Since it was found that the alleged contraband of LSD was having a total weight of 0.1586 gm., and as the said weight of the contraband would fall within the notified commercial quantity limits, bail pleas were rejected in view of the restrictions contained in Sec.37 of the NDPS Act.

3. In this bail application, the prosecution has pointed out that it has already been categorically held by a Three-Judge Bench of the Apex Court, in the celebrated case in Hira Singh & anr. v. UOI & anr., [(2020) 20 SCC 272] that, while determining as to whether the weight of the alleged contraband would fall within “small quantity”, “intermediate quantity” or “commercial quantity”, as envisaged in the notification S.O No.1055 (D) dated 19.10.2001, as amended from time to time, issued under the above Act, the weight of not only the pure drug quantity, but also that of the neutral substance should be taken into account for determining as to whether the weight of the contraband would come within “small quantity” or “commercial quantity”, etc., as the case may be.

4. It has been urged by the prosecution that the plea of the applicant, that the actual weight of the pure drug quantity alone should be assessed and not the total weight of the LSD, as ingested in the blotter paper, etc., cannot be countenanced, in view of the authoritative pronouncement of law by the Apex Court in Hira Singh's case supra [(2020) 20 SCC 272]. The prosecution has also urged that LSD ingested in blotter paper, etc., would also be a mixture and will be a “preparation”, within the meaning of Sec.2(xx) of the Act and hence, the total weight of the mixture for preparation of the psychotropic substance or narcotic drug, as the case may be, should be taken into account, as per the above dictum. Whereas, the applicant has urged that a learned Single Judge of the Bombay High Court, in the case in Hitesh Hemant Malhotra v. State of Maharashtra [(2020) SCC Online Bom 3581, para.11), has held that the paper only carries the LSD drug and facilitates its consumption, but the paper with the LSD drops as a whole, is neither “preparation”, within the meaning of Sec.2(xx), nor a “mixture” within the meaning of the NDPS Act and hence, the dictum laid down by the Apex Court in Hira Singh's case supra [(2020) 20 SCC 272], has no application in a case where the alleged contraband is LSD ingested in blotter paper, etc., and that, therefore, the actual weight of the pure drug quanti